Events & Insights

The Functionality of Land Use Boards in the Midst of a Pandemic: Public Hearings Must (and Can) Go On

April 7, 2020

It is no secret that professions throughout the world are navigating uncharted territory: living in a virtual reality beyond anything they had imagined. Fortunately for those with ties to land use in New Jersey – be that a member of a board, applicant, attorney, or other professionals – the Department of Community Affairs, Division of Local and Government Services, has handed down guidelines that outline means by which land use boards throughout the State may continue functioning during a declared state of emergency (the “DLGS Guidelines”). For anyone that is even vaguely familiar with New Jersey’s Open Public Meetings Act, N.J.S.A. 10:4-6 et seq. (“OPMA”), or Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. (the “MLUL”), you know that this is huge news given the intricate procedures which must be followed in order for a local land use board to properly process and consider an application.

Wondering what exactly the DLGS Guidelines change about the land use process? Allow us to break it down for you…

Filing the Application

While the DLGS Guidelines do not in any way alter what application materials are required or how applications are to be filed, applicants and/or their professionals are encouraged to reach out to the secretary of the board to which they seek to make an application, as many local boards are implementing temporary procedures for accepting applications. Such temporary procedures include, but are not limited to, the following:

Only accepting deliveries on certain days of the week;

Only accepting deliveries from certain carriers; or

Accepting deliveries at a different location.

Once an application has been filed with a local board, under the MLUL, it must be reviewed and determined to be either complete or incomplete within forty-five (45) days. Every board implements its own procedures for determining completeness (i.e., making an administrative determination, requiring a completeness hearing, etc.) and the DLGS Guidelines do not impact such procedures. Rather, the DLGS Guidelines come into play after an application has presumably been determined to be complete and a public hearing has been scheduled.

While the DLGS Guidelines do not in any way alter what application materials are required or how applications are to be filed, applicants and/or their professionals are encouraged to reach out to the secretary of the board to which they seek to make an application, as many local boards are implementing temporary procedures for accepting applications. Such temporary procedures include, but are not limited to, the following:

Only accepting deliveries on certain days of the week;

Only accepting deliveries from certain carriers; or

Accepting deliveries at a different location.

Once an application has been filed with a local board, under the MLUL, it must be reviewed and determined to be either complete or incomplete within forty-five (45) days. Every board implements its own procedures for determining completeness (i.e., making an administrative determination, requiring a completeness hearing, etc.) and the DLGS Guidelines do not impact such procedures. Rather, the DLGS Guidelines come into play after an application has presumably been determined to be complete and a public hearing has been scheduled.

Preparing for the Public Hearing

So an application has been determined to be complete and a public hearing has been scheduled… now what?

Make sure all application materials are on file with the board’s secretary.

Under the MLUL, all application materials, including all signed applications, plans, reports, and other documents, must be on file with the board’s secretary for review by the public not less ten (10) days prior to the public hearing. Simple enough, except for when “social-distancing” is in effect and members of the public are not allowed to enter the board’s office where the application materials are on file.

Solutions Under DLGS Guidelines:

File application materials on the municipal website or another online platform that is accessible to the public free of charge.

If a member of the public does not have access to a computer to view the application materials, he/she may contact the board secretary and request that either (1) a copy be sent directly to him/her or (2) a copy be made available for pick-up by appointment at the local police station or municipal building, subject to standard fees or charges.

The board secretary’s preferred means of contact (i.e., best phone number and/or e-mail address to be reached at) should be posted online for use by members of the public.

Helpful Tip:

Applicants should submit a digital copy of all application materials at the time of submission of their application, even where a digital copy is not expressly requested. This will help ensure that the materials are on file ten (10) days ahead of the meeting, as required under the MLUL.

Do not forget to include key details in the public hearing notice.

The MLUL requires that the public notice to be mailed/published by applicants must include the time, place, and location of the public hearing, as well as the location where the application materials are on file for inspection by members of the public.

Additional Details Under DLGS Guidelines:

Where public hearings are to be held virtually, the public notice should advise as such and include, as applicable, (1) a link that the public may use to access the hearing online and (2) dial-in information for members of the public wishing to participate via telephone.

An instruction that if a member of the public wishes to participate in the virtual hearing, he/she should contact the board secretary in advance to determine how he/she may do so.

A link to the website(s) where the application materials are on file and can be viewed by members of the public.

If the application materials are available for pick-up at the local police station and/or the municipal building, the address(es) of such locations shall be provided, together with the times in which the application materials will be available and if individual appointments shall be required.

Helpful Tip:

Applicants should request the board secretary’s preferred means of contact (i.e., best phone number and/or e-mail address to be reached at) and include it in the public notice for use by members of the public.

Plan for a virtual hearing.

Public hearings on applications are typically held in local municipal buildings where the board, applicants, their professionals, and members of the public all congregate. Since this would be clearly violative of social-distancing protocols, boards are now permitted to conduct hearings virtually.

Setting Up for a Virtual Hearing Under DLGS Guidelines:

Choose a platform that can accommodate the board’s needs and provides for visual participation by the board, applicants, their professionals, and members of the public (i.e., Zoom, Facebook Live, YouTube, etc.).

File all exhibits to be presented at the public hearing with the board secretary not less than two (2) days prior to the hearing so that they can be made available for review to the board and members of the public during the hearing.

Helpful Tip:

In selecting a platform, the board should consider, among other things, the following:

How many participants it can accommodate at any given time;

Ease of access;

Whether it allows for a dial-in option for those wishing to participate via telephone; and

Cost.

Do not forget to record the hearing.

Boards are required to record all hearings, in addition to taking minutes which must be made available to the public. Additionally, in the case of applications for “d” variances pursuant to N.J.S.A. 40:55D-70d, a court reporter must be engaged.

Recording Hearings Under DLGS Guidelines:

Whatever platform the board chooses to conduct a virtual hearing must have capability of recording the hearing.

Minutes must still be taken and, where required, court reports must still be employed.

… if only it was all that straightforward.

Helpful Tip:

If a platform offers recording, the board should ask the following questions:

Is there a limit on how long a recording can be?

Can we/how do we obtain a permanent copy of the recording?

Conducting the Public Hearing

Well hold on just one second… I know that members of the public are allowed to be present for – and to comment on – an application. Things need to be done by the book to avoid any problems later!

You cannot have a public hearing without the public.

Great news! The public CAN participate in the hearing on an application using the virtual technology discussed above. The OPMA specifically provides that meetings may be held either in person “or by means of communication equipment.” This means that if the board so chooses, the law allows for online meetings/hearings, as long as such meetings/hearings remain open to members of the public and allow them to take part.

Public Participation Under DLGS Guidelines:

Every member of the public who wishes to participate shall be given the opportunity to do so.

Members of the public who plan to participate are encouraged to advise the chairperson of the board in advance in order to ensure all technological needs are accommodated.

The chairperson of the board shall establish a time limitation for how long each member of the public may speak. This time limit may be relaxed for the cross-examination of the applicant’s witnesses.

The chairperson may also instruct members of the public that they are to refrain from asking questions or presenting comments that have already been asked and/or presented.

Helpful Tips:

A board should consider limiting meetings/hearings to those that do not require detailed visual displays.

If an application is likely to be controversial (e.g. complex development, use variance, major subdivision, etc.), the board should consider pushing off the application until either (1) the meeting/hearing can be held in person or (2) everybody (i.e., board, applicant, their professionals, and members of the public) is more comfortable with a virtual meeting/hearing setting.

The chairperson should designate a “tech” person who is in charge of making sure everybody has the opportunity to be heard in connection with an application.

Members of the public should test their microphones and webcams ahead of the meeting/hearing to make sure all equipment is in good working order!

OK, we covered notice under the MLUL, but what about notice under the OPMA?

Anyone that has been to a board meeting before knows that at the beginning of every meeting, either the board secretary or the chairperson makes the “Sunshine Law” (OPMA) announcement that notice of the meeting was provided at the board’s annual reorganization meeting. A virtual meeting certainly was not announced!

Not to worry, the OPMA has got you covered. The Board must simply provide notice to the public under the same conditions as any special meeting of the Board.

The OPMA’s Relationship to the DLGS Guidelines:

Similar to the procedure for holding a special meeting of the board, the board secretary shall provide notice not less than forty-eight (48) hours in advance of a virtual meeting, which notice shall set forth the time, date, virtual platform to be utilized, and, to the extent known, the agenda of the virtual meeting.

During a state of emergency, the notice may be provided electronically via the internet to satisfy the “adequate notice” provision of the OPMA.

Helpful Tip:

Notice of the meeting should be provided as far in advance of the meeting as possible and should provide detailed instructions for how to access and utilize the virtual platform.

The board secretary should include their preferred means of contact (i.e., best phone number and/or e-mail address to reach them at) in the notice for use by members of the public who have questions regarding the virtual meeting and how to participate.

Putting it all Together

These are certainly unique and trying times, and just like every other industry, applicants, their professionals and local land use boards throughout the State are working hard to continue to remain open for business. While the modifications to the typical development process discussed in this article may seem drastic, each one of them fits within the letter and spirit of the law and helps ensure that any action taken results in a fair and legal outcome.

The land use process is collaborative and transparent, and the DLGS Guidelines do not endeavor to circumvent these tenets. Rather, the DLGS Guidelines provide viable alternate options to ensure that the industry continues to operate efficiently and justly.

If you have any questions, or you would like to discuss your particular situation, please do not hesitate to reach out to the experienced attorneys at Prime & Tuvel. We would be happy to assist you in any way we can.